Reported Decision : 122 A Crim R 361 New South Wales Court of Criminal Appeal CITATION : R v GJH [2001] NSWCCA 128 revised - 27/04/2001 FILE NUMBER(S) : CCA 60630/00 HEARING DATE(S) : 2 April 2001 JUDGMENT DATE : 24 April 2001 PARTIES : Regina GJH JUDGMENT OF : Stein JA at 1; Wood CJ at CL at 2; Studdert J at 73 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0127 LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : R D Cogswell SC with Ms B Baker S J Odgers SC SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeal - appeal against sentence - indecent assault of a female under 16 years - rape - miscarriage of justice - failure to give Longman direction - failure to give direction on way to proceed if jury not satisfied that complainant was telling the truth on one or more counts - failure to give a direction in relation to intoxication - failure to direct jury in relation to lies - directions on alibi evidence Crimes Act 1900 ss 63, 76 LEGISLATION CITED : Criminal Appeal Act s 6(1) Criminal Procedure Act 1986 s 48 DECISION : (1) Appeal allowed (by reference to Grounds 1 and 4).; (2) Convictions quashed and new trial ordered. IN THE COURT OF CRIMINAL APPEAL No. 60630 of 2000 STEIN JA WOOD CJ at CL STUDDERT J TUESDAY 24 APRIL 2001 Regina v GJH JUDGMENT The appellant was indicted on four counts of indecent assault of a female under the age of sixteen years pursuant to s 76 Crimes Act 1900, and one count of rape, pursuant to s 63 Crimes Act 1900. The appellant was convicted of two counts of indecent assault and one count of rape, but acquitted in relation to two of the counts of indecent assault. He appeals against the convictions on the grounds that (1) the trial judge failed to give a Longman direction; (2) the trial judge failed to give a direction on the way the jury ought to proceed if they were not satisfied beyond a reasonable doubt that the complainant was telling the truth in relation to one or more counts on the indictment; (3) the trial judge failed to give a direction in relation to intoxication; (4) the trial judge failed to direct the jury in relation to lies; and (5) the directions in relation to alibi evidence were deficient. Held: (Appeal allowed): Ground 1: trial judge failed to give a Longman direction While the trial judge brought the matter of delay to the attention of the jury, and gave it substance, so far as she related it to specific areas where evidence may have been lost, there lacked any warning in the express terms which Longman and Crampton held essential in a case involving lengthy delay. The trial Judge did not express the matter of delay in terms of "dangerousness". Nor was the summing up sufficient to bring the matter home to the jury in the way Spigelman CJ had referred to in Johnston. The summing up amounted to a comment that was comprehensive, but was not a warning of the unmistakable and firm kind that was needed in a case of such lengthy delay. Appellant entitled to a new trial on this ground. Longman (1989) 168 CLR 79; Crampton (2000) 176 ALR 369; Mayberry (2000) NSWCCA 531 applied. King NSWCCA 507; Johnston (1998) 45 NSWLR 362 distinguished. Ground 2: absence of direction on way jury ought to proceed if not satisfied the complainant was telling the truth in relation to one or more counts on the indictment The appellant submitted that the jury were insufficiently directed when the trial judge stated that it did not necessarily follow that because a jury finds an accused guilty or not guilty of the first charge, that they will automatically find the same verdict in relation to the other charges. It was submitted that addittionally a direction should have been given in accordance with the dictum in RAT. Doubt was expressed as to whether such a direction is appropriate. However, it was not necessary to decide this issue as the appellant was otherwise entitled to a new trial. Jones (1997) 191 CLR 439; RAT (2000) 111 A Crim R 360 considered. Ground 3: trial judge failed to give a direction in relation to intoxication There was some evidence from the complainant that the appellant was under the influence of alcohol at the time of the acts alleged. There was, however, no evidentiary issue as to the knowledge of consent, since the appellant's case was one of denial. It remained necessary for the trial Judge to direct the jury in relation to the elements which had to be proved, including knowledge and lack of consent, even though the direction suggested may have seemed somewhat unreal in the context in which the case was fought. A trial judge has no authority to dispense with the directions that the law requires. Although error was shown, there was no reason to suppose that the failure to give the direction resulted in a miscarriage of justice. Stokes and Difford (1990) 51 A Crim R 25; BRS (1999) 191 CLR 275 applied. Ground 4: failure to direct the jury in relation to lies It was not entirely clear whether the lies were relied upon as matters that went to credibility, or to consciousness of guilt although they were the subject of very strong comment in the prosecution address. So far as the trial judge dealt with the matter of consciousness of guilt, the summing up clearly fell short of the directions required in Edwards. Since there was some uncertainty about the matter, then the trial judge should have required the prosecution to state in clear terms whether it contended that the evidence was relied upon as showing a consciousness of guilt or was a matter going to credibility and then directed the jury accordingly. Otherwise, a direction should at least have been given so as to ensure that the jury did not embark upon an impermissible line of reasoning. A concession was made by the Crown that the jury were not given any proper assistance as to what they were to do if they came to disbelieve the appellant. Appellant entitled to new trial on this ground. Edwards (1993) 178 CLR 193; Zoneff (2000) 74 ALJR 895 applied. Ground 5: directions given in relation to the alibi evidence were deficient The alibi witness was allowed to give evidence even though no proper notice had been given in accordance with s 48 Criminal Procedure Act 1986. The Crown was, however, permitted by way of concession from the defence to show that notice had not been given. The trial judge reminded the jury of that fact but did not explain what followed. It was submitted that proper assistance was not given to the jury, it not having been made clear whether the procedural failure was a matter going to the weight of the alibi evidence, or was indicative of a false alibi, evidencing a consciousness of guilt. The jury were also not given any direction as to where the onus of proof of alibi lay, a matter that should be addressed where there is danger of them assuming it rests with the accused; or as to the circumstances that if the alibi was reasonably possible then they should acquit; or as to the circumstances that even if they rejected it, that did not necessarily mean that the appellant was guilty. The jury were entitled to appropriate directions concerning the matter. Although it was conceded that this matter would not have been sufficient to give rise to a miscarriage of justice had it been the sole ground for appeal, there were independent grounds for allowing the appeal.. J No.2 (1998) 3 VR 602; Steeden NSWCCA 19 August 1994; Visser NSWCCA 29 July 1994 applied. ORDERS PROPOSED (1) Appeal allowed (by reference to Grounds 1 and 4). (2) Convictions quashed and new trial ordered. IN THE COURT OF CRIMINAL APPEAL No. 60630 of 2000 STEIN JA WOOD CJ AT CL STUDDERT J TUESDAY 24TH APRIL 2001 Regina v GJH JUDGMENT 1 STEIN JA: I agree with Wood CJ at CL. 2 WOOD CJ at CL: The appellant appeared for trial in the District Court at Dubbo, before Judge Morgan and a jury of twelve, in answer to an indictment containing four counts of indecent assault of a female under the age of sixteen years (S76 Crimes Act 1900), and one count of rape (S63 Crimes Act 1900). He was convicted of two of the counts of indecent assault and of the count of rape, but acquitted in relation to two of the counts of indecent assault. He now appeals against the convictions. Facts Count 1 3 The complainant gave evidence that when she was eleven or twelve years of age she was living at a property in the Western Districts, with her parents, five brothers and two younger sisters. Her elder sister C, was living with her boyfriend at his parent's home in Bourke. The complainant gave evidence of an occasion in 1977 or 1978, when she visited those premises. She was taken to the bedroom where her sister C and the appellant were in bed. Her sister left the room for a short time. While she was absent the appellant, according to her, walked up to her from behind, turned her around, kissed her on the lips and touched her breasts over her clothing. She said "Don't" and pushed him back. Footsteps coming in the direction of the room were heard, and when the door was opened, the appellant let her go. 4 The complainant said that she did not mention the incident to anyone as she was too scared. She thought that this event occurred before her sister's wedding, during summer. She also thought that the appellant's parents and sister were in the house. A verdict of guilty was returned in relation to this count. Counts 2 and 3 5 The complainant gave evidence of two further indecent assaults which she said occurred in about 1978, this time in the caravan at the rear of the home of the appellant's parents, in which he and her sister C were living. Again she said these acts occurred before they were married. On this occasion, it was her evidence that the appellant came home drunk with a male friend. The friend slept in the bed which the complainant had intended to use. The appellant told her to sleep in the bed he shared with her sister. During the night, she said, he touched her first over the breast and stomach, and later over the breast and vaginal area. The appellant was acquitted of these two counts. Count 4 6 The complainant gave evidence of attending a party at the home of the appellant's parents, which she thought was a barbecue held on the occasion of her sister's eighteenth birthday, again prior to her marriage. At about midnight, she said, guests were leaving by the back lane. She went out to see someone off. Having done that she found herself alone with the appellant. According to her, he pulled her down the lane to a grassed area where he pushed her to the ground. He kissed her and touched her on the "breast, on the stomach and down below". She asked him to stop, but he ignored her request and tried to undo her clothes, before undoing his belt and trousers. When a car started up down the laneway he stood up and adjusted his clothing. When the lights of the car were illuminated he told her not to move. He went over and spoke to someone in the car. After it drove off she returned to the party. The appellant was convicted of this count. Count 5 7 The complainant gave evidence that she enrolled at a college at Forbes in 1981. As the boarding section was not ready, she went to stay with her sister and the appellant at a property he was managing at Grenfell. Her sister, who was pregnant, became sick and was taken to the Forbes Hospital. The complainant went back to the property. Later that afternoon, she said, the appellant returned, under the influence of alcohol. 8 She said that when she went to bed the appellant asked her, from the bedroom door, whether she was going to kiss him goodnight. She went into the bedroom where he was lying on the bed, and gave him a peck on the forehead. The appellant, she said, pulled her down and rolled on top of her. He took her nightdress and his shorts off, and started touching her on the breast, stomach and vagina. He tried to put his finger in her vagina and then grabbed her hand and placed it on his penis. Although she told him not to do this, he spread her legs apart and started pushing his penis inside her. She said that it was hurting her and she asked him to stop. He said that it would not hurt after a while and persisted in what he was doing, despite her plea and attempts to push him away. When he got off her in order to reach for some vaseline, she managed to get away and run into the bathroom. 9 There she said that she noticed that she was bleeding from the vagina. When she left the bathroom she pushed the appellant, who was waiting outside, out of the way and said that she was going to bed. Once in her bedroom she locked the door. The appellant followed her and told her to come out and that he would not hurt her. He tried the door handle unsuccessfully and then left her alone. 10 She said that she did not wake up until late the next day. At around lunchtime, the appellant took her to see her sister at the hospital, and then he dropped her off at the College. She was unable to see her sister because the appellant said that she was in intensive care. Her sister gave birth two or three days later. The baby was ill and taken to Sydney. 11 The complainant said that after this incident she could not find the bottom part of her nightie. Many months later, she said, her sister returned it to her, saying that she had found it under her bed. The appellant was convicted of this count. 12 Some evidence was led of an uncharged incident that allegedly occurred on Christmas day at the home of the complainant's grandmother. Against her wishes, and upon her mother's instructions, she said that she accompanied the appellant to his home to get some ice. When they got there, she said, he began to touch her. She pushed him away and said to him "leave me alone or I'm going to tell." 13 Of relevance for the time frame charged, 21 July 1977 to 20 January 1980, for the indecent assault offences; and 21 January 1981 to 9 February 1981, for the rape count, were the following pieces of objective evidence obtained from official records or from other unquestioned sources: a) the complainant was born on 21 January 1966; b) the marriage of the complainant's sister C, to the appellant occurred on 3 May 1980; c) their child was born on 8 February 1981; d) the complainant attended the College in Forbes during the year 1981. 14 Additionally of relevance were the following pieces of evidence: a) the complainant's mother initially said that she believed that her daughter C and the appellant lived in a caravan at the back of his parent's home before they were married, but later was less sure about the time that they did this; b) she also gave evidence that there had been a party to celebrate "C"s eighteenth birthday, but it was on the property where the family lived. Additionally, she said, she recalled a celebration that had been held at the home of the appellant's parents, which the complainant would have attended. She could not, however, remember the occasion for it; c) the complainant's stepfather gave evidence that his daughter C and the appellant lived together in a caravan at the home of the appellant's parents, for a period of between three to eight months after C left school in about 1979, including a short time prior to their marriage; d) he also gave evidence of attending a party at the home of the appellant's parents at about the time he and C were married, which continued into the evening. 15 It was the complainant's account that she had stayed with the appellant at Forbes, despite the earlier assaults, because she had done what she was told when she was a child, and because she expected her sister to be there. She also said that she had not complained because she had been too scared to tell her sister or her parents, and because she had not wanted to hurt her sister. 16 In the defence case, evidence was called from the appellant and his wife, as well as from his sister in law and a friend of his wife. 17 In substance, the appellant denied the allegations. He said that : a) He first met C in September 1979, at a Race dance, and became engaged to her in December 1979; b) he first met the complainant in November 1979 at her school in Bathurst. c) from about December 1979, C had moved into the front room at his parents home, where they lived together until two or three months after their marriage in May 1980; d) they then moved into the caravan, where they stayed for no more than a month before moving to Grenfell; e) he did not recall the complainant visiting them at the caravan, and denied that she ever got into his bed. e) on the occasion of taking his wife to the hospital in Forbes, he had not returned to the Grenfell property, but had stayed with a friend of his wife at Forbes, remaining there for a few days before accompanying his wife and baby to Sydney for treatment. He denied that the complainant had visited them at this time or had ever stayed overnight at the Grenfell property. 18 His wife C supported this evidence, and additionally said that: a) the complainant only ever came to the home of the appellant's parents on the day of the wedding, and had never visited her in the bedroom; b) there never were any parties or celebrations at this house before the wedding; c) she did not have any celebration for her eighteenth birthday; d) the complainant was not at the Grenfell property at the time of her admission to hospital on about 7 February 1981, and so far as she was aware, had never been to the property; e) there never was any occasion when the complainant went off with the appellant to fetch ice, although on Christmas Day 1981, she did leave with her stepfather for this purpose. The day was, however, spent at premises other than those of the complainant's grandmother, as was said to be supported by photographs taken that day; f) she denied locating any item of clothing belonging to the complainant at Grenfell. 19 The appellant's sister in law said that she had lived in the caravan with her husband until about July 1980, when they moved it to the home of the appellant's parents, whereafter the appellant and C lived in it for a few months. 20 The friend of the complainant's sister C, gave evidence that on the day that she had been admitted to hospital, the appellant had come to their home. He had stayed there until his wife was discharged. Although only asked to remember this about a week before giving evidence, she was certain that she was not mistaken about it. 21 The following grounds of appeal were advanced: Ground 1 - failure to give a Longman direction 22 Although the trial Judge gave detailed directions concerning delay, and identified several respects in which the appellant may have been disadvantaged in his ability to procure evidence to answer the complaints, it was submitted that these directions fell short of that required in Longman(1989) 168 CLR 79, where Brennan, Dawson and Toohey JJ said (at 90-91): "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see R v Spencer (1987) AC at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) Ante pp 31-32, 42-44, 56-57) and it was imperative that warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice." 23 These statements were endorsed by the majority of the High Court in Crampton (2000) 176 ALR 369 where Gaudron, Gummow and Callinan JJ noted that the passage from Longman cited above, "distinguished between two different sets of circumstances: those which might well invite, and we would interpolate, will generally require comment; and those in respect of which a warning is imperative." 24 Their Honours held that the summing up at first instance in that case had fallen short of a warning, and that what the trial Judge said was "to say too little, too unemphatically, and less than what Longman required in the circumstances of this case" and noted (at par 45): "An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence) should have been put to the jury." 25 Kirby J, similarly noted the importance of the distinction between a comment and a warning, observing: "125. … It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of "long delay" it is "imperative" in the sense of obligatory, that the trial judge must give to the jury). 126. Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accused. … 129. The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even decades, after an alleged offence occurred. This has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial. 130. The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakable and firm". It must be related to the evidence and derived from forensic experience." 26 After noting the areas of potential disadvantage faced by the appellant in that case, his Honour added: "132 The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. (cf McGinley "Case and comment: Bull, King; Marotta" 2000 24(5) Criminal Law Journal 315 at 318). That idea is contrary to the repeated authority of this court in and since Longman . The jury needs the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time, especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms." 27 Hayne J similarly observed: "142. … As the joint judgment in Longman points out, it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a " Longman warning" is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. " 28 Crampton, it may be observed, has been applied by this Court in Mayberry (2000) NSWCCA 531 and distinguished in King (2000) NSWCCA 507. 29 In Johnston (1998) 45 NSWLR 362, Spigelman CJ noted at 369-370: "It is important to emphasise that what is required by way of comment or direction must depend on the whole of the circumstances. The guiding principle on such matters is stated by the High Court in Longman (at 86): 'The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.' … A direction which does not contain the words 'dangerous' or 'unsafe' to convict, is not necessarily inadequate: see R v Spencer (at 138) per Lord Ackner; R v McDonald (at 10-13) Terminology such as 'considerable caution' will sometimes be adequate. Nor should it be assumed that the use of the word 'dangerous' or 'unsafe' will necessarily be adequate. As Brennan J put it in Bromley v The Queen (1986) 161 CLR 315 at 325: "'The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.' His Honour went on to say (at 325): 'When the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence … are such that the jury may not have fully perceived or the jury's attention may have been diverted from the danger, a warning should be given.' Although these comments were made in the context of dealing with evidence said to be unreliable by its nature, the reasoning is equally applicable to remedying unfairness to the ability of the accused to put his case. 30 After a review of the decisions, his Honour summed up the relevant principles as follows (at 375): "(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (vi) Where the summing up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (vii) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)." 31 The deficiency said to exist in the present case lay in the absence of any reference by her Honour to the dangerousness of the jury convicting on the complainant's evidence alone, unless after scrutinising it with great care, and paying heed to the warning, they were satisfied of its truth and accuracy. 32 The strongest terms in which a direction concerning delay was given, in the present trial, was as follows: "The evidence in this matter, or the Crown case I should say, depends upon the evidence given by (P). She is the witness the Crown calls to give evidence of what she alleges took place on each of these five occasions and as is usually the case in this type of charge, type of matter, there are usually never any witnesses apart from the person making the allegation and the person who is charged with the offences. It is not an unusual thing at all as you would think you would reason as a matter of commonsense that this type of activity takes place in private. Because of that the Courts have always warned juries very strongly , not only in this type of case, but any case in which there is one person making an allegation against an accused person and there is no other evidence which supports or no eye witness but no support for the evidence other than the evidence given by the person making the allegations. You must scrutinise that person's evidence with care . You must look at it very carefully before you can act upon it. This is, as I say, said in every case of this nature and where one person makes an allegation. But in this case of course not only must you look very carefully at the evidence that has been given by (P), you would also have in mind the age, how long ago this took place, and how memories can change." 33 The need for the jury to "very carefully consider her evidence" was repeated more than once (summing up p. 27 and p 53), although, on the first of these occasions, it followed some directions that were more pertinent to the complainant's explanation concerning the possibility that she had mistaken some of the dates, by reason of the passage of time. 34 Elsewhere, the fact of delay was brought to the notice of the jury, initially in the context of the accuracy of the recollection of witnesses speaking of events that were over twenty years old (p. 6 of the summing up), next in the context of credibility so far as there had been a delay in complaint (p. 20 of the summing up), and then in the context of the impact that delay had upon the ability of the appellant to meet the Crown case (p. 22 of the summing up). 35 In the course of these passages the trial Judge informed the jury that: "obviously and necessarily the accused has had difficulty in meeting" the allegations, adding that there "could well be material that might have been available to (him) if this matter had been raised at a much earlier time". 36 Specific instances were mentioned such as the production of witnesses who may have been at the party or in the laneway at the time of the events the subject of count 4, including the person in the car; the calling of the person who slept in the caravan on the occasion of the events the subject of counts 2 and 3; and the records concerning the acquisition and move of the caravan itself. 37 When dealing with the addresses, her Honour also reminded the jury of the defence submission concerning the difficulties with dates: "So not only is he placed in a position where this matter is so old that he cannot really find people to come along and say what he was doing at a certain time or any other information that may have been available to him if these matters had come to light at an earlier time. Not only is he disadvantaged by that but when he gets to Court to answer the questions the dates are changed to accommodate the problem with P's evidence….". 38 While it is true that the trial Judge did bring the matter of delay to the attention of the jury, and gave it substance so far as she related it to specific areas where evidence may have been lost, there was lacking any warning in the express terms which Longman and Crampton held to be essential in a case involving lengthy delay. 39 I have given careful consideration to whether the terms in which, and the manner in which her Honour came back on more than one occasion to the question of delay, sufficiently emphasised the danger involved, ie whether although not expressed in terms of "dangerousness" the summing up sufficiently brought that matter home in the way of which Spigelman CJ spoke in Johnston. I have concluded that it did not achieve the result. At best, I regard it as having amounted to a comment that was comprehensive, but was not a warning of the unmistakable and firm kind that was needed for a case with the delay that was here involved. It was upon the basis of the relative short delay in King that Crampton was distinguished. The present case is very different, being more akin to that seen in both Crampton and Mayberry. 40 Accordingly, I am of the view that while the point was not taken below, this ground of appeal has been made good. 2. Absence of direction as to the way in which a jury ought to proceed if not satisfied beyond reasonable doubt that the complainant was telling the truth in relation to one or more counts in the indictment. 41 This has a relevance in the light of the acquittal of the appellant of Counts 2 and 3. 42 The appellant does not suggest that there was an inconsistency of verdicts of the kind that might attract a consideration of the decision in Jones (1997) 191 CLR 439 and S6(1) Criminal Appeal Act. 43 In that regard, it was accepted that there was a plausible explanation for the acquittal on these two counts, since the trial Judge had instructed the jury that it would not be enough for them to be satisfied beyond reasonable doubt that the indecent assaults alleged had in fact occurred. Additionally, she emphasised, more than once, even though time was not of the essence, ie subject to the offences occurring before the repeal of s76 on 14 July 1981, that they must be satisfied that the particular acts the subject of these counts, had occurred within the time frame particularised (cf Stringer [2000] NSWCCA 293 and Dossi (1918) 13 Cr App R 158). 44 In the light of the evidence as to when the appellant met C, the contradictory evidence as to when the caravan was taken to the home of the appellant's parents, and as to whether the appellant and C had moved into it only after they were married in 1980, and in the light of the complainant's admitted uncertainty about dates, it is well understandable that the jury could have entertained a reasonable doubt about the date at which the alleged assaults occurred, while fully accepting her evidence that they did occur. 45 Notwithstanding this concession, the appellant now submits that the jury were erroneously directed when informed: "You will have to consider each of the charges individually, that is to say you must consider the evidence which goes to each of those charges and you will return your verdict according to the evidence, according to the facts as you find them to be. Now it does not follow necessarily that because you find the accused guilty or not guilty of the first charge that you would then automatically find the same verdict in relation to the other charges." 46 It was submitted that, additionally, a direction should have been given in accordance with the dictum in RAT (2000) 111 A Crim R 360 where Dunford J said at 371: "If I am correct in my understanding of the effect of Jones , then I believe consideration needs to be given to the directions regularly given to juries in such trials. Juries are constantly told that they should consider each count in the indictment separately and also that they may accept part of a witness' evidence and not accept other parts of the evidence of that same witness. But Jones appears to establish a qualification to these directions to the effect that in sexual cases, where the only direct evidence of the commission of the offences is that of the complainant, if they are for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that she (or he) is telling the truth in relation to any other count; and therefore in such cases (that is, where there is no independent evidence of the commission of the offences) if they find an accused not guilty on one count, they must also find him not guilty on all counts. They should also be warned specifically that if they return different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside." 47 Hulme J at 383, observed: "I agree with his Honour that in some cases, a direction as contemplated by his Honour may be appropriate. However, it seems to me that before such a direction is required, not only would the complainant's evidence have to be the only direct evidence of the commission of the offences but there would have to be nothing else in the evidence bearing on her credibility or in the evidence of surrounding circumstances which lent support for one charge rather than another." 48 Barr J expressly did not deal with the suggested direction, confining his decision to the second ground of appeal. 49 The necessity for giving the direction suggested by Dunford J as a matter of course in a case involving multiple counts was rejected by this Court in ARD [2000] NSWCCA 443, and was also discussed in Robinson [1999] NSWCCA 186. I would express my doubts as to its appropriateness, both in the form suggested and as an invariable direction. 50 The point is however reserved in a part heard appeal (R v M ) which is now to be heard by a bench of five Justices. In that appeal, attention can be given to the possible difficulty arising with the suggested direction in so far as it may invite an obverse process of reasoning where the prosecution case is particularly strong on one count, and where the evidence of the accused is demolished on that count, or in so far as it might invite tendency reasoning of the kind discussed by the High Court recently in KRM (2001) HCA 11. 51 I take the view that it need not be decided in this case, since the appellant is otherwise entitled to a new trial. Ground 3. Absence of direction in relation to intoxication 52 This ground was relevant only to the rape count, specifically as to the element of knowledge of lack of consent. The direction given in this regard was follows: "That is a matter for you as the judges of the facts whether you were satisfied beyond reasonable doubt, first of all that it took place and that it took place without her consent. You must then be satisfied beyond reasonable doubt that at the time the accused knew that she was not consenting. That is the case even though the accused here said "well it just didn't happen at all". It is for the Crown to prove, and prove beyond reasonable doubt that he knew that at the time he was doing this to her she was not consenting to his actions." 53 There was some evidence from the complainant that the appellant was under the influence of alcohol at the time of the acts alleged. There was, however, no evidentiary issue as to knowledge of consent since the appellant's case was one of denial, not only of any sexual act, but also of the complainant's presence at the premises where it was alleged to have occurred. 54 It was necessary for her Honour to direct the jury in relation to the elements which had to be proved, including knowledge of lack of consent. Even though the direction suggested may have seemed somewhat unreal in the context in which the case was fought, the aspect of intoxication was relevant to that element. In Stokes and Difford (1990) 51 A Crim R 25, at 32 Hunt J (as he then was) dealt with a similar question as follows: "The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133, Galambos (1980) 2 A Crim R 388 at 395,396-397. The judge must comply within his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe (1986) VR 515 at 548; 18 A Crim R 360 at 394-5; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990 ) at 1-2. An error of law has therefore been established by Stokes, in that the judge erred in acceding to the request of his own counsel, made for tactical reasons to benefit the appellant's own case, not to put intoxication to the jury as being a relevant to an issue which the Crown had to establish. The irony of such a conclusion - that the judge erred by doing precisely what the appellant had asked him to do - is even greater because, had the direction been given which Stokes now says should have been given it would have been likely to weaken his case." 55 Similarly, in BRS (1999) 191 CLR 275, the majority of the High Court upheld an appeal, on the basis of a miscarriage of justice, as the result of the trial Judge's failure to direct the jury according to law notwithstanding the absence of objection by trial counsel. McHugh J at 306 said: "Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice." 56 In the present case it is likely that the question of intoxication was deliberately ignored by Counsel for the appellant, since similarly to the case of Stokes, to draw the jury's attention to it was only likely to weaken the defence case. This flowed from the circumstance that the jury may well have concluded that the effects of alcohol were disinihibiting or such as to fan the appellant's ardour, thereby providing an explanation for the conduct alleged: cf Coleman (1990) 19 NSWLR 467 at 486. 57 Error has been shown. However, had this been the only ground of appeal, then I would have regarded the case as appropriate for an application of the proviso, as occurred in Stokes and Difford; and see also Khouzame (1999) 108 A Crim R 170 at 187 where leave was refused under r4 of the Criminal Appeal rules to argue a similar ground. Upon a retrial, it would, however, be appropriate to ensure that the necessary direction is given. Ground 4 - Failure to direct the jury in relation to lies 58 The appellant was cross examined by the Crown Prosecutor in relation to certain matters that were submitted to have been lies told to police or to the jury. They encompassed the following matters: a) the answer he gave to police to the effect that he did not hold parties at his parent's home; b) the answer given to police that he did not remember how many bedrooms were in his parent's home; c) the evidence which he initially gave that his wife had been admitted to the Forbes Hospital on 7 February 1981, which he later corrected to 6 February 1981. 59 In relation to each of those matters he was cross examined along the lines that he had tried to block these things out of his mind, because they were linked with unpleasant memories of what had occurred with the complainant. In relation to the last matter, this was embellished by a question in cross examination along the lines that there were other events, undefined, at the time, that he also wanted to put out of his mind. 60 In dealing with these various exchanges, and with the cross examination of the appellant generally, her Honour did no more in the summing up than to remind the jury that: "It was suggested to him that he was avoiding the questions, that he did not want to answer them because it would reveal his guilt." Specifically in relation to the rape count, her Honour said: "As I say he was cross examined very closely in relation to all of these matters and it is a matter for you ladies and gentlemen as to whether you feel he was shaken by the evidence, that he revealed that he was not telling the truth about his whereabouts and indeed as I say those are matters for you. The Crown has addressed you on it and I do not take it any further." 61 During the course of argument on the appeal the Court requested that a transcript of the addresses be taken out, since it was not clear from the appeal papers whether the lies were relied upon as matters that went to credibility, or to a consciousness of guilt. So far as the latter was suggested in the way her Honour dealt with the matter in the first of the passages mentioned, then the summing up clearly fell well short of the directions required in Edwards (1993) 178 CLR 193. 62 If, however, there was some uncertainty about the matter, then, consistently with the decision in Zoneff (2000) 74 ALJR 895, her Honour should have required the prosecution to state in clear terms whether it contended that the evidence was relied upon as showing a consciousness of guilt or was a matter going to credibility. Otherwise if the matter had been left in the air, then a direction of the kind mentioned by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff at para 23 could properly have been given, so as to ensure that the jury did not embark upon an impermissible line of reasoning. Their Honours there observed: "[23] A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning; do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.' [24] A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence." 63 Now that a transcript has been provided, it is apparent that the Crown Prosecutor attached a great deal of weight to what were said to be lies told by the appellant, which at one point were described in terms of having been "baldfaced and blatant", and such as to invite scepticism as to what he had told the jury. The submissions in this regard extended to matters additional to those mentioned earlier, including the appellant's assertion that he had been unable to see a fence that the complainant had described on the property, his claim to having been a gardener rather than a stationhand, and whether the property carried sheep rather than cattle. 64 Few if any of the "lies" identified related to a material aspect, being very much concerned with peripheral detail. The clear and strong thrust of what the Crown Prosecutor was putting, however, was that the appellant "would sooner slide off a question than face up to it and answer it", because he had a "guilty conscience", because he knew "he had a lot to hide" and because he knew "ultimately that the truth (would) reveal his guilt." 65 In a supplementary submission delivered after the Court's decision was reserved, the Crown has very fairly and responsibly accepted that while much of the submissions (and I would add the cross examination) went to the issue of credibility, at least some of the matters relied upon could be considered as having touched upon the issue of consciousness of guilt. It was further accepted that the credibility of the appellant was very important, and that as the jury had not been given any proper assistance as to what they were to do if they came to disbelieve him, this ground of appeal had been made good, even though no point was taken at trial. 66 The concession was properly made, and the appellant is, additionally, entitled to a new trial by reason of this ground. Alibi direction 67 The appellant next submitted that the directions in relation to the alibi evidence concerning the rape count were deficient. The relevant witness was allowed to give the evidence, even though no proper notice had been given. No adjournment was sought by the Crown. It was, however, permitted to place before the jury, by way of a concession from the defence, that notice of the alibi had not been given by it (in accordance with S48 of the Criminal Procedure Act 1986). 68 The trial Judge dealt with this in the following terms: "Indeed you will recall that it has been conceded by Counsel, as is usually required if there is an alibi to be raised by an accused person that he was in another place at another time when the offences were supposed to have taken place that notice of that should be given to the Crown. And as Counsel conceded such a notice has never been given to the Crown that he was apparently so he says staying at (M's) place over this period of time …." 69 It was submitted by the appellant that this direction did not provide proper assistance to the jury as to the way in which they might take that procedural failure into account. In particular it was not made clear whether it was a matter going to the weight of the alibi evidence, or was indicative of a false alibi evidencing a consciousness of guilt (as to which an Edwards type direction should be given). Nor were the jury given any directions as to where the onus of proof lay, a matter that should be addressed where there is a danger of them assuming that it rested with an accused (J No.2) (1998) 3 VR 602 at 630); or as to the circumstance that if the alibi was reasonably possible then they should acquit (Steeden NSWCCA 19 August 1994); or as to the circumstance that even if they rejected it, that did not necessarily mean that the appellant was guilty (Visser NSWCCA 29 July 1994). 70 In appropriate cases, these directions should be given, and it would have been desirable once her Honour thought it necessary to touch upon the topic, to have at least developed the last of them. 71 No further direction was, however, sought at trial. Counsel in the appeal properly conceded that this matter would not have been sufficient to give rise to a miscarriage of justice, had it been the sole ground for complaint. This clearly was correct, given the passing nature of the reference, in the summing up, to the procedural requirement, which was unlikely to have meant much to the jury. However, as I have observed, it is not the only deficiency in the summing up, and the failure to assist the jury in relation to the significance (or lack of significance) attaching to the concession, compounded the other problems mentioned. 72 I would, by reference to grounds 1 and 4, allow the appeal, quash the convictions, and order a new trial. 73 STUDDERT J: I agree with Wood CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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